[HISTORY: Adopted by the Borough Council
of the Borough of Mount Pocono 6-14-1976 by Ord. No. 2-1976. Amendments noted where
applicable.]
This ordinance shall be known and may be cited
as the “Mount Pocono Borough Community Antenna Television Franchise
Ordinance.”
As used in this chapter, the following terms
shall have the meanings indicated:
The Borough of Mount Pocono, Monroe County, Pennsylvania.
The governing body of the Borough of Mount Pocono, Monroe
County, Pennsylvania.
An arrangement or combination of apparatus whereby television
signals broadcast over the air are received at one or more towers,
antennas or other devices from television stations licensed by the
Federal Communications Commission and other information sources and
which for a consideration are transmitted by means of a coaxial cable
or other suitable device to television receiving sets or subscribers
to such service.
Blue Ridge Cable Television Inc., the grantee of rights under
this franchise.
Any person, firm, partnership, association, corporation,
company or organization of any kind.
Includes all public streets, ways, alleys and parkways owned
by or under the jurisdiction of the Borough of Mount Pocono.
There is hereby granted by the Borough to the
company an exclusive franchise to construct a community antenna television
system (CATV) for television related services as may be prescribed
or permitted by the Federal Communications Commission and to use poles,
wires, conduits and appurtenances under, along, across or upon any
or all public streets, ways, alleys or parkways, as the same now or
may hereafter exist with the Borough of Mount Pocono and within the
boundaries of the said Borough of Mount Pocono and distributing electricity
and electrical impulses and signals for television purposes, namely
to produce reproduction of signs and sounds in combination to the
residents of the Borough of Mount Pocono, upon the terms and conditions
and subject to the limitations herein set forth.
Upon the annexation of any territory to the
Borough, the portion of any said utility that may be located or operated
within said territory, upon the streets, alleys or public ways thereof,
shall thereafter be subject to all the terms of this franchise as
though it were an extension made thereunder.
The company shall, at all times during the life
of this franchise, be subject to all lawful exercise of the police
power by the Borough, and to such reasonable regulations as the Borough
shall hereafter by resolution or ordinance provide.
The company shall indemnify and save the Borough
and its agents and employees harmless from all and any claims for
personal injuries or property damages, and any other claims and costs,
including attorneys’ fees, expenses of investigation and litigation
of claims and suits thereon which may arise from the installation
and/or operation of the company’s television antenna system
or any equipment of the company. In case suit shall be filed against
the Borough, either independently or jointly with said company, to
recover for any said claim or damages, said company, upon notice to
it by said Borough, shall defend said Borough, its agents and employees,
against said action, and, in the event of a final judgment being obtained
against said Borough, either independently or jointly with said company,
the said company will pay said judgment and all costs and hold the
Borough harmless therefrom. For this purpose, the company shall carry
and at all times maintain or file with the Secretary of the Borough
of Mount Pocono and at all times keep in force, a public liability
policy or policies in the name of the company and the Borough as their
respective interest may appear, insuring the company and the Borough
against any and all liability arising from the installation and/or
operation of said system, which policy or policies shall be approved
by the Solicitor of the Borough. Such liability policy or policies
shall be in the sum of $25,000 for damage to property in any one accident,
and not less than $100,000 for injury or death to any one person,
and not less than the sum of $200,000 for death or injury to all persons
affected by any one accident. Such policies of insurance shall be
issued by a company licensed to do business in the Commonwealth of
Pennsylvania. The company shall also carry workmen’s compensation
coverage for all of its employees subject to such coverage, and shall
submit to the Secretary of the Borough a certificate of insurance
showing that workmen’s compensation coverage is in effect.
The company shall annually pay a franchise fee
to the Borough during the life of this franchise, said fee to be 2%
of the gross annual receipts of the company arising within the Borough
from monthly subscriber service charges only; said fee being for the
regulation and privilege of using the streets and alleys of the Borough
for the operation of its system. The franchise fee shall be due and
payable on the first day of April of each and every year hereafter.
The company shall during the continuance of
this franchise provide facilities and service sufficient to meet the
needs of the public welfare, and shall maintain its facilities and
service up to date and in keeping with technical progress. The company
shall maintain and operate its system and render efficient service
on a minimum of seven TV channels as permitted by the FCC and in accordance
with rules and regulations as are, or in the future may be, set forth
by the Council of the Borough. The system shall be installed and maintained
in accordance with good engineering practices, and any spurious electromagnetic
radiation must fall within the limits specified by the Federal Communications
Commission. All construction must be done in a good and workmanlike
manner, free of obvious defects which may be a hazard to life and
limb, and in conformance with the standards as set forth in the National
Electric Safety Code.
A.
Notice of interruption for repairs. Whenever it is
necessary to shut off or interrupt service for the purpose of making
repairs, adjustments or installations, the company shall do so at
such time as shall cause the least amount of inconvenience to its
customers, and unless such interruption is unforeseen and immediately
necessary, it shall give reasonable notice thereof to its customers.
B.
Continuous service. Company service shall be continuous
daily during the regular telecast operating hours of the stations
whose TV broadcasts are being transmitted.
C.
Nondiscrimination of service. The company shall serve
any person residing in or owning property in the Borough desiring
service who shall pay the charges hereafter enumerated.
D.
Interference. The company shall at all times operate
the community system so as not to adversely affect or interfere with
existing radio and television reception and shall prevent radiation
from the company’s cables to antennas located in the Borough.
E.
The company shall immediately investigate and resolve
all service complaints and equipment malfunctions. The company shall
maintain a local business office for these purposes in Stroudsburg
where a complete tariff governing the service to customers is on file.
Said tariff shall also be on file with the Secretary of the municipality.
Notice of procedure for reporting and resolving complaints shall be
given to each subscriber at the time of initial subscription.
F.
The Secretary of the Borough has primary responsibility
for administration of the franchise and implementation of complaint
procedures.
A.
The rates charged by the company for service on a
minimum of seven TV channels as permitted by the FCC hereunder shall
be as follows:
|
Regular
| |
|
Connection
|
$12.50
|
|
Monthly service
|
$5.45
|
|
Additional sets - connection
|
$5.00
|
|
Additional sets - monthly service
|
$0.55
|
|
Reconnection (temporary) six months
|
$3.00
|
|
Reconnection (over six months)
|
$5.00
|
|
Seasonal
(less than 9 months)
| |
|
Connection
|
$12.50
|
|
Monthly service
|
$6.00
|
|
Additional sets - connection
|
$5.00
|
|
Additional sets - monthly service
|
$0.75
|
|
Applies to Regular and Seasonal Subscribers
| |
|
Relocation of outlet
|
$3.00
|
|
Relocation to new address (new connection)
|
$12.50
|
|
Relocation to new address (pole connection)
|
$4.00
|
|
Installation of FM
|
$12.50
|
|
Installation of underground
|
$15.00
|
B.
The company shall not further increase rates without
the permission and approval of the Borough Council after a full public
proceeding affording due process. Further, the Borough Council will
not unreasonably withhold approval of a rate increase upon a showing
of the need by the company as a result of the adoption of copyright
fees. The approval of any changes in the rates shall be by resolution
of the Borough Council.
The sole stockholders of the company is presently
Pencor Services Inc. The company shall not sell, transfer or assign
this franchise nor shall its owners transfer majority ownership of
their stock of said company, unless to one of its wholly owned subsidiaries,
without the approval of the Borough Council which said approval will
not be unreasonably withheld. Provided, further that no sale or transfer
shall be effective until the vendee, assignee or lessee has filed
with the Borough Secretary, an instrument accepting the terms of the
franchise and agreeing to perform all the conditions thereof.
A.
Use. All transmission and distribution structures,
lines and equipment erected by the company within the Borough shall
be located with the approval of the Borough Council and shall be so
located as to cause minimum interference with the proper use of streets,
alleys and other public ways and places, and to cause minimum interference
with the rights and reasonable convenience of property owners who
adjoin the streets, alleys or other public ways and places.
B.
Restoration. In case of any disturbance of pavement,
sidewalk, driveway or other surfacing the company shall, at its own
cost and expense and in a manner approved by the Borough Council,
replace and restore all paving, sidewalk, driveway or surface of any
street or alley disturbed, in as good condition as before said work
was commenced and shall maintain the restoration in improved condition
for one year.
C.
Relocation. In the event that at any time during this
franchise the Borough shall lawfully elect to alter or change the
location or grade of any street, alley or other public way or if in
the opinion of the Borough Council a pole or pole line interferes
with the necessary convenience of the Borough or a property owner,
then, upon reasonable notice by the Borough, the company shall remove,
relay and relocate its poles, wires and cables or other television
fixtures at its own expense.
D.
Placement of fixtures.
(1)
It is to be the general policy of the Borough and
it is understood by the company that where distribution lines are
to be installed along any public street, the same shall preferably
be attached to existing utility poles rather than to additional poles
placed by the company, and that where poles are to be placed in alleys,
the same shall be located whenever possible on the same side of the
alley as existing utility poles. It is understood and agreed that
this restriction and limitation shall extend to any and all streets
within the limits of the Borough, even though some of said streets
may be part of the state highway system, special exception or exceptions
may be granted to the company by the Borough Council upon written
application to it by the company, but said exceptions shall be for
good cause shown.
(2)
Before the company sets poles or constructs any structure
on Borough property, it shall file with the Borough detailed specifications
showing the exact location, height and dimensions of the poles or
structures to be erected. The poles or structures shall not be erected
thereafter until such specifications shall be approved in writing
by the Borough Council and the Pennsylvania Department of Transportation
has issued a license when and if required. All wires, cables and other
overhead equipment shall be at such minimum heights as are or may
be required of telephone or power lines by the Public Utility Commission
or by the Pennsylvania Department of Transportation.
(3)
Where the Borough Council of the Borough is uncertain
as to the exact location of the limits of the right-of-way of any
street or alley, then, in its discretion, it may require the same
to be surveyed by a surveyor selected by it, the cost of said survey
to be paid by the company.
E.
Tree trimming. The company shall have the authority
to trim trees upon and overhanging streets, alleys, sidewalks and
public places of the Borough so as to prevent the branches of such
trees from coming in contact with wires and cables of the company,
all trimming to be done under the supervision and direction of the
Borough Council and at the expense of the company.
F.
Use of poles and fixtures. The company agrees that
it will furnish a copy of any contract entered into with any utility
for the use of their poles by the company and setting forth the terms,
conditions and duration of said contract.
G.
Removal of wires and installation from premises of
subscriber. The company shall, on request of any subscriber, promptly
remove all wires and installations from the premises of such subscriber.
H.
Removal of wire, poles and installation from Borough streets. The company shall remove or cause to be removed from the streets, alleys and public ways of the Borough of Mount Pocono and from all public property all of the wires, poles and installations of any kind or nature whatsoever which have been installed under the authority of this franchise upon the termination of this franchise the cessation of operation under this franchise by the company, its successors or assigns, for any reason whatsoever, or the forfeiture of this franchise under the provisions of § A217-15 herein. In order to insure the performance of this provision, and the provisions, terms and conditions of this ordinance, the company shall post an adequate performance bond and continue the same in effect during the term of this franchise, said bond to be in the amount of $5,000 in favor of the Borough and with surety or sureties thereon to be approved by the Borough, the bond to be approved as to form by the Borough Solicitor.
The Borough Council, their Treasurer, Solicitor,
auditors or accountant shall have the right at reasonable times to
inspect the books and records of the company for the purpose of verifying
the statement of rentals received.
The franchise and rights granted herein shall
take effect upon the effective date of this ordinance and shall continue
in force and effect for a period of 15 years thereafter. At the option
of the company and with the approval of the Borough Council, upon
review of the applicant’s qualifications, the franchise may
be extended for additional terms each of 10 years. Any modifications
of 76.31 of the Rules of the Federal Communications Commission shall
be incorporated into this Franchise Ordinance within one year of adoption,
or at the time of franchise renewal, whichever occurs first.
The company shall assume the cost of publication
of this ordinance as such publication is required by law. A bill for
publication costs shall be presented to the company by the Secretary
of the Borough and upon the company’s filing of acceptance shall
be paid at that time.
The Borough Council may at any time declare
a forfeiture of this grant for violation or default by the company
of any of the terms thereof, provided that none of the terms of this
grant shall be deemed to be violated so as to permit such forfeiture
unless the company shall first be given notice by the Borough of such
violation or default and of the attempt to declare a forfeiture and
thereafter if such violation or default shall continue for a period
of more than 90 days all the rights and privileges of said company
under the provisions of this ordinance may be forthwith declared forfeited
and revoked. If any action shall be instituted or prosecuted directly
or indirectly by the company, or by its stockholders, or creditors,
to set aside or have declared void any terms of this grant, the whole
of this grant may be thereupon forfeited and annulled at the option
of the Borough Council, to be expressed by ordinance. Provided, however,
the company shall not be deemed to be in default for performance of
any provision of this grant, nor shall any forfeiture be invoked for
any violation or failure to perform any provision hereof due to strikes,
lockouts, insurrections, acts of God, or any cause beyond the control
of the company.
Whenever, by the terms of this ordinance, notice
is required to be given by the Borough to the company, it may be given
by delivering to an officer of the company a paper writing thereof
during the ordinary business hours at the principal office of the
company. Whenever the company is required to give notice to the Borough,
it shall do so by leaving or delivering a paper writing thereof at
the office of the Secretary of the Borough during ordinary business
hours.
The company will hold the Borough harmless from
the alleged violation of any utility franchise previously granted
by the Borough. The granting of a franchise under this ordinance shall
not be construed as any undertaking or guarantee of the efficiency
of the company or maintenance of the service of the company. The Borough
assumes no responsibility for the acts or omissions of the company
other than to require compliance with this ordinance.
Should any section or part of any section of
this ordinance, for any reason, be declared void or invalid, the remainder
of said ordinance shall not be affected thereby.
This grant is made upon the express condition
that the company, within 30 days after this ordinance takes effect
and becomes operative, shall file with the Secretary of the Borough
a written acceptance of the same, and when this ordinance shall have
been accepted by the company, such ordinance and acceptance shall
constitute a contract between the Borough and the company for all
the uses, services and purposes set forth in this ordinance, and the
company by its acceptance of the provisions of this ordinance binds
itself to provide the necessary television antenna system and to establish,
operate and maintain the local television antenna system contemplated
in this ordinance, continuing without substantial interruption except
for causes beyond its control until the expiration of the term of
this grant. In the event that said company fails to file said written
acceptance within the time herein before specified, this grant, together
with any rights or liabilities arising out of the proposal heretofore
made for the furnishing of an adequate television antenna system for
the benefit of inhabitants of said Borough, and the acceptance of
such proposal by the Borough, shall be of no effect and void.
CATV service under this franchise shall be extended
within four years of the date hereof to all portions of the Borough
(excluding those areas with a population density of less than 20 homes
per mile) commencing within one year after receiving a certificate
of compliance from the FCC and shall cover not less than 20% per year.
This ordinance shall become effective five days
after enactment by the Borough Council.
